1. ' HAMOODUR RAHMAN, C. J.-The petitioners in these two petitions are son and father respectively.
2. The respondents are the same in both cases. The dispute relates to an evacuee property in Mohallah Jewan Mal, Peshawar City, originally belonging to one F. D. Khanna. Since it belonged to one evacuee owner, it was treated by the Custodian Department as one house and assessed as such, but was for the sake of convenience, it is said, given two numbers, namely, 26-K and 27-K.
3. ' The whole premises were allotted to Gul Jamal, the petitioner in petition No, 8-P, who claims that by subsequent family arrangement he occupied the portion 27-K and his son Ahmad Jamal, who was being brought up by his maternal uncle, possessed portion 26-K.
4. ' According to the petitioners, the premises consisted of two independent residential units, having separate entrance doors; one in Mohallah Jewan Mal and the other in Hashtnagri Gate on the G. T.
5. Road; separate latrines and separate stair-cases.
6. ' Nevertheless, originally Gul Jamal, the father, who was a local, submitted one L. H. Form for the transfer of the entire premises, but the same was rejected on the ground that the evaluation price was in excess of Rs, 10,000, and hence the said petitioner, being a local, was not entitled to its transfer.
7. ' Notwithstanding this rejection, the petitioner Gul Jamal filed another L. H. Form claiming the transfer of portion 27-K and got another L. H. Form submitted in the name of his son Ahmad Jamal, the petitioner in Petition No, 6-P of 1974, who was then a minor, for the portion 26-K.
8. ' It is not clear if the second L. H. Form of the petitioner Gul Jamal was accepted or any order was passed thereon, but the form filed on behalf of the minor Ahmad Jamal was rejected by the Assistant Settlement Commissioner on 19-11-1959. From this an appeal was taken before the Deputy Settlement Commissioner, but the same was also dismissed on the 2nd of February, 1960.
9. From the order of the Deputy Settlement Commissioner, a further proceeding was taken before the Additional Settlement Commissioner, which is now described as a revision petition, but has been dealt with by the Additional Settlement Commissioner throughout as an appeal. The Additional Settlement Commissioner inspected the spot and, by his order of the 30th of November, 1960, set aside the order of the Deputy Settlement Commissioner holding that the building consisted of two separate residential units and the case of each unit should be decided separately on its own merits.
10. ' In the meantime, the property was included in the earmarking list. The petitioner Ahmad Jamal raised an objection to this. At first the property was excluded from the earmarking list but somehow it was again included in the list for earmarking. Ahmad Jamal again objected on the 3rd of February, 1960. This time, the Deputy Settlement Commissioner forwarded the objection to the Additional Settlement Commissioner, Peshawar. The latter called for a report. This report was submitted on the 22nd of February 1960, showing that an appeal with regard to this property was pending before the Additional Settlement Commissioner and no date had yet been fixed for its hearing. In spite of this report, the Additional Settlement Commissioner, without excluding the property from the earmarking list, passed his order of remand on the 30th of November 1960.
11. ' As the property was not withdrawn from the earmarking list, it was drawn by the respondent Nazir Ahmad in the lottery and transferred to him under Settlement Scheme No, V on the 21st of March, 1960. The transfer was, as usual, subject to the conditions that it would be "liable to cancellation if it is subsequently found out that the house is transferred to some other person".
12. ' Notwithstanding this order of transfer in favour of the respondent Nazir Ahmad, the same Additional Settlement Commissioner who had approved of the transfer under the earmarking scheme did not make the respondent Nazir Ahmad a party to the appeal pending before him but decided the same on the 30th of November 1960, without issuing any notice to him, although the effect of the order of the 30th of November, 1960, was to set aside the order of transfer under Scheme No, V passed on the 21st of March, 1960.
13. ' After the order of the Additional Settlement Commissioner, the Deputy Settlement Commissioner accepted the L. H. Forms of the two petitioners.
14. ' The respondent, however, went to the Settlement Commissioner in revision against the order of the Additional Settlement Commissioner, who, by his order of the 5th of December 1961, set aside the order of the Additional Settlement Commissioner passed on the 30th of November, 1960, on the ground that the Additional Settlement Commissioner had no jurisdiction to entertain a second appeal from the appellate order of the Deputy Settlement Commissioner. The Settlement Commissioner also found that the house was indivisible and its value being more than Rs, 10,000 was not transferable to locals.
15. ' Ahmad Jamal went up in second revision to the Chief Settlement Commissioner, but his petition was dismissed on the 20th of November 1962. This order of the Settlement Commissioner was then sought to be challenged by two separate writ petitions by the father and son in the High Court. A learned Single Judge of the former High Court of West Pakistan, Peshawar Bench, accepted the petitions and issued writs recalling the order of the Settlement Commissioner and remanding the case back to him to decide the revision on merits, in the light of the observations contained in the judgment.
16. ' On a Letters Patent appeal, however, a Division Bench of the Peshawar High Court reversed the decision of the learned Single Judge, with the result that the decision of the Settlement Commissioner was restored.
17. ' The father and son have now come up before us for special leave to appeal, and it is first contended that the High Court had not taken into consideration the facts of the case in deciding as to whether it was one house or two houses. It has to be pointed out that it is the case of the petitioners themselves that the premises belonged to one evacuee owner and they were assessed in the records of the Custodian as one property but were given two numbers merely for the purposes of convenience. Hence the question, as to whether the property was divisible or not, was a question within the exclusive jurisdiction of the Settlement Authorities, and here, starting from the Assistant Settlement Commissioner, all Settlement authorities have held the house to be one unit, except for the Additional Settlement Commissioner. The final decision in the Settlement jurisdiction is, however, that it is one house.
18. The learned counsel's contention that this decision was bad, because, it was made by an officer who had himself not inspected the premises, is not tenable, because, it is not necessary that in every case the Settlement Officer, deciding the question of divisibility of a house, must locally inspect the! Premises even if there is other material upon the record upon which such a decision can equally well be made.
19. ' It has to be remembered that, under the scheme of the Settlement Laws, every evacuee residential premises is to be treated as one house, unless divided by the Settlement Authorities. In the present case; the Settlement Authorities have not chosen to divide it. The final order of the Settlement Authorities is to the effect that the house is an indivisible unit. Hence this question could not be re-opened in the writ jurisdiction.
20. ' Learned counsel next contended that if the house could be divided suitably into two integral portions so as to accommodate two locals that should have been done. This contention is opposed not only to the Depart mental Instructions on the subject but also to the decisions of the Courts which have consistently held that a house cannot be divided merely for the purpose of accommodating a local.
21. ' The Chief Settlement Commissioner, by his Memorandum No, 7355-PLREH/60, dated the 2nd March, 1960, clearly instructed the subordinate officials that "houses the value of which is more than Rs, 10,000, should not be divided in order to make the local entitled to a portion thereof, unless such division existed before Partition and the sub-divided unit is an independent residential premises in every respect." There is no evidence here that any division existed before Partition nor do we know that the portions are independent residential units in every respect.
22. ' In the case of Sarwar Khan v. Chief Settlement Commissioner (1), this Court has already pointed out that a house cannot be divided for purposes of transfer to locals but if a house is sub-divided by the Settlement authorities and a local is found entitled to the transfer of a sub-divided portion then there can be no objection to the transfer of such a portion to the local. But D whether a house is divisible or not is a question for the authorities to decide. The Courts do not sit on appeal over the authorities in these matters.
23. ' Since the house has been held to be indivisible, then, clearly, the petitioners are not entitled to the transfer of the premises.
24. ' The other contentions raised by them as to the legality of the earmarking do not, therefore, arise, because, once it is decided that the petitioners are not entitled to the transfer of the premises, they have no locus stand to object to the transfer thereof to another person.
25. ' For these reasons, we dismiss both these petitions.
(1) PLD 1973 SC 210 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.